Interstate Depositions and Discovery Act Widens Footprint

Nebraska has become the latest state to modernize its rules for taking depositions across state lines. The UIDDA is now effective in 43 states, the District of Columbia, and the U.S. Virgin Islands.

On Jan. 27, the Nebraska Supreme Court adopted the Uniform Interstate Depositions and Discovery Act by amending Nebraska Court Rules 6-328 and 6-330(A) (PDF) dealing with discovery subpoenas. Nebraska court rules now set out in detail the process that must be followed when out-of-state litigators seek deposition testimony and evidence from a Nebraska resident. The new rules also include commentary and an example subpoena for attorneys to follow.

The UIDDA was written in 2007 by the National Conference of Commissioners on Uniform State Laws (now known as the Uniform Law Commission) to create uniformity nationwide and bring this part of state pretrial discovery practice into line with Rule 45 of the Federal Rules of Civil Procedure. With the exception of Connecticut, Massachusetts, Missouri, Oklahoma, New Hampshire, Texas, and Wyoming, all other states have adopted — or are considering adopting — the UIDDA.

Two other states may also adopt UIDDA in 2021. In Missouri, House Bill 347 (PDF) was introduced Jan. 6. Oklahoma’s effort to adopt UIDDA is further along in the legislative process. On Feb. 16, House Bill 2229 (PDF) was approved 9-0 in the Oklahoma House Judiciary-Civil Committee. 

UIDDA Procedure Explained

Interstate discovery practice grows every year, driven largely by Internet-facilitated commerce and the ability of persons to travel freely across state lines. For attorneys who have yet to face the need to compel testimony or evidence from an out-of-state witness, the following information may be useful.

Prior to the UIDDA, attorneys who wanted to obtain the testimony of an out-of-state witness were required, in essence, to obtain permission from courts in two states — the “trial state” where the litigation was pending, and the “discovery state” where the witness was located. In Maine, for example, state law required the signature of a Maine attorney on any subpoena to be served on a resident of that state. That requirement was eliminated when Maine adopted the UIDDA in 2018.

The UIDDA streamlines prior practice by making the procedure for obtaining a subpoena for an out-of-state witness almost identical to the procedure for an in-state witness. 

The typical process for obtaining a UIDDA-compliant subpoena goes something like this:

First, the attorney checks to determine if the discovery state has adopted the UIDDA. The Uniform Law Commission publishes a chart showing which states have enacted the UIDDA, either by statute or court rule.

In states where the UIDDA is in place, the attorney in the trial state prepares a subpoena in conformity with the trial state’s rules. 

Next, the attorney checks with the clerk’s office in the county or district in the discovery state where the witness to be deposed lives. The attorney obtains a copy of the subpoena form (in all likelihood, this form and instructions are available on the clerk’s website) to be used in the discovery state and completes it. At this point, the subpoena is ready to be served. The lawyer hires a process server (or local counsel) in the discovery state, who will take the subpoena to the clerk, have it issued, and then served on the witness.

The process is efficient and, unless the witness seeks a protective order, there is no need for courts in the discovery state to rule on the lawfulness of the subpoena. Importantly, a subpoena request under the UIDDA does not constitute an appearance in the state where the witness is located.

Attorneys should be aware that adoptions of the UIDDA vary from state to state. Many states specify language that must be included on each subpoena, and all of them set out the information that must be provided by counsel before the clerk is authorized to issue the subpoena. Some states (e.g., Virginia) require reciprocity.

If the discovery state has not adopted the UIDDA, then obtaining testimony from that state’s residents will be more difficult. Some of these jurisdictions require the court in the discovery state to issue mandates or letters rogatory to the court in the trial state before a subpoena may issue. In Texas, for example, local procedures for interstate subpoenas are highly protective of state residents, often requiring the assistance of Texas counsel to obtain discovery across state lines for Texas witnesses.

Fortunately, non-UIDDA jurisdictions like Texas are outliers today. The UIDDA’s wide acceptance elsewhere across the United States have drained unnecessary complexity from the cross-border subpoena process, saving both litigators’ time and clients’ money along the way.